Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
California Courts of Appeal
Supreme Court of Delaware
Supreme Court of Florida
Illinois Supreme Court
New York Court of Appeals
Texas Criminal Court of Appeals
Wisconsin Court of Appeals
Federal Courts (January-June 2008)
U.S. Supreme Court
U.S. v. Santos (6/2/2008, No. 06-1005) ____ US ____ [170 LEd2d 912; 128 SCt 2020]: The term “proceeds” in the federal money-laundering statute, 18 USC 1956(a)(1), means “profits,” and not “receipts.” Another justice joined in the judgment, opining that revenue which a gambling business uses to pay essential operating expenses is not “proceeds” under the statute.
Cuellar v. U.S. (6/2/2008, No. 06-1456) ____ US ____ [170 LEd2d 942; 128 SCt 1994]: The federal money laundering statute, 18 USC 1956(a)(2)(B)(i) does not require proof that a defendant attempted to “legitimize” tainted funds, but the government must demonstrate that a defendant did more than merely hide the money during its transport.
Indiana v. Edwards (6/19/2008, No. 07-208) ____ US ____ [128 SCt 2379; 2008 U.S. LEXIS 5031]: The trial court’s refusal to permit the defendant adjudged competent to stand trial, but not competent to conduct trial proceedings sufficiently to proceed in pro per, and the court’s subsequent appointment of counsel, did not violate the defendant’s constitutional right of self-representation within the meaning of Faretta v. California (75) 422 U.S. 806.
Rothgery v. Gillespie County (6/23/2008, No. 07-440) ____ US ____ [128 SCt 2578; 2008 U.S. LEXIS 5057]: A criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. The Court rules that attachment of the right does not also require that a prosecutor (as distinct from a police officer) be aware of such initial proceeding or be involved in its conduct.
Giles v. California (6/25/2008, No. 07-6053) ____ US ____ [128 SCt 2678; 2008 U.S. LEXIS 5264]: In Crawford (541 US 36), the US Supremes held that admission of testimonial hearsay violates the confrontation clause unless there was a previous opportunity to cross-examine. However, California’s forfeiture by wrongdoing rule said that making the witness unavailable was enough to trigger this exception. The U.S.S.C. disagreed. The prosecutor has to show that the defendant engaged in conduct designed to prevent the witness from testifying, not just conduct that resulted in the witness not testifying. Also, Crawford applies against the prosecution but not the defense.
Kennedy v. Louisiana (6/25/2008, No. 07-343) 2008 U.S. LEXIS 5262: The Eighth Amendment of the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.
District of Columbia v. Heller (6/26/2008, No. 07-290) 2008 U.S. LEXIS 5268: The 2nd Amendment protection of the right to bear arms precludes laws limiting an individual’s right to conspicuous carrying of a firearm. Concealed firearms can be banned, as can automatic weapons, possession of firearms by felons or the mentally ill, and firearms in sensitive places such as schools and government buildings. Therefore, this would appear to invalidate any statute barring non-concealed possession of non-automatic weapons in public, including in cars. It would also render detentions and arrests for possession of such weapons illegal.
Begay v. U.S. (4/16/2008, No. 06-11543) ____ US ____ [170 LEd2d 490; 128 SCt 1581]: Driving under the influence of alcohol (DUI), as set forth in New Mexico’s criminal statutes, is not a “violent felony” as the term is defined in the Armed Career Criminal Act (ACCA).
Boulware v. U.S. (3/3/2008, No. 06-1509) ____ US ____ [170 LEd2d 34; 128 SCt 1168]: Person accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that either he or the corporation intended a return of capital when the distribution occurred. The government’s failure to prove an element of the charged offense requires acquittal even if that result might appear to favor “form over substance” (Boulware v. US, 128 SCt 1168, 1178) , by allowing a person who acted with “bad intention” to escape criminal conviction “[a]cting on bad intentions alone [is] not punishable.” [Citation.]” (Ibid.)
Snyder v. Louisiana (3/19/2008, No. 06-10119) ____ US ____ [170 LEd 2d 175; 128 SCt 1203]:The trial court erred when it rejected petitioner’s Batson claim. During voir dire in Snyder’s capital murder trial, the prosecutor used peremptory challenges to eliminate black prospective jurors who had survived challenges for cause. The Louisiana Supreme Court rejected Snyder’s Batson claim. The United States Supreme Court reversed, finding that the trial court committed clear error in rejecting the Batson objection. The prosecutor justified his challenge of juror Brooks by stating that Brooks was a college senior attempting to fulfill his student teaching obligation, and that he looked “nervous.” The explanation was insufficient for a Batson determination. Brooks was one of more than 50 venire members who expressed concerns that jury service would interfere with other obligations. The prosecutor did not question Brooks more deeply on the matter. The prosecutor’s explanation that Brooks would decide the case in a way to avoid a penalty phase, was highly speculative and unlikely. The implausibility of the prosecutor’s explanation was reinforced by his acceptance of white jurors with similar conflicting obligations. The pretextual obligation gives rise to an inference of discriminatory intent. J. Thomas and Scalia dissented.
Danforth v. Minnesota (2/20/2008, No. 06–8273) ____ US ____ [169 LEd2d 859; 128 SCt 1029] Teague v. Lane (1989) 489 US 288, limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed “nonretroactive” under Teague.
Major Certiorari Grants From The U.S. Supreme Court:
Melendez-Diaz v. Massachusetts CERT GTD (3/17/2008, No. 07-591) 170 LEd2d 352; 128 SCt 1647: Can the DA use a chemist’s report that a substance was cocaine in lieu of actual live testimony by the chemist, or does this violate Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]? (Commonwealth v. Melendez-Diaz (2007) 870 NE2d 676, below.)
Oregon v. Ice CERT GTD (3/17/2008, No. 07-901) 170 LEd2d 353; 128 SCt 1657: Must the jury find the facts used to justify imposition of consecutive sentences, or does this violate Cunningham v. California (1/ 22/2007, No. 05-6551) 549 US 270 [166 LEd2d 856; 127 SCt 856]? (State v. Ice (2007) 170 P3d 1049, below.)
1st Circuit Court of Appeals
U.S. v. Carrasco (8/28/2008, 1st Cir. No. 06-1887, 06-1888) 2008 U.S. App. LEXIS 18522: District court erroneously reversed its own ruling, with no consideration for the reliance of the parties and after other defendant had already testified.
U.S. v. Ofray-Campos (7/7/2008, 1st Cir. No. 05-1461) 534 F3d 1: Jurors exposed to extrinsic factual information.
U.S. v. Godin (7/18/2008, 1st Cir. No. 07-2332) 534 F3d 51: To obtain a conviction for aggravated identity theft under 18 USC 1028A(a)(1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person.
U.S. v. Aviles-Colon (7/31/2008, 1st Cir. No. 05-1384, 05-2039, 05-2040) 536 F3d 1: Government failed to disclose exculpatory evidence material to his defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
U.S. v. Rodriguez (5/13/2008, 1st Cir. No. 06-2719) 525 F3d 85: Brandishing firearms conviction vacated in absence of evidence that defendant or his co-conspirator displayed firearms for the purpose of intimidating other persons.
U.S. v. Lara-Ramirez (3/11/2008, 1st Cir. No. 06-2108) 519 F3d 76: Denial of a motion to dismiss the charges against defendant on double jeopardy grounds violated where the district court failed to conduct an adequate investigation into alternatives to a mistrial.
U.S. v. Urciuoli (1st Cir. 1/18/2008, No. 07-1297) 2008 U.S. App. LEXIS 1049: Mail fraud and conspiracy as part of a scheme to bribe a state legislator convictions vacated where jury instructions were over-broad.
2nd Circuit Court of Appeals
Harris v. Alexander (12/4/2008, 2nd Cir. No. 07-3920) 548 F3d 200: Petitioner was convicted without due process of law where the trial court refused to instruct the jury on the theory of petitioner’s agency defense – that, under state law, a defendant’s intention to turn drugs over to a purchaser when the defendant acquired the drugs as the purchaser’s agent, did not constitute intent to sell the drugs.
U.S. v. Lee (12/3/2008, 2nd Cir. Nos. 05-1684-cr (L), 05-6851-cr (Con)) 549 F3d 84: Erroneous admission of detective’s testimony recounting statement made by an alleged participant in the conspiracy who did not himself testify at trial was not harmless beyond a reasonable.
U.S. v. Al-Moayad (10/2/2008, 2nd Cir. No. 05-4186-cr (L)) 2008 U.S. App. LEXIS 20794: Terrorist conspiracy conviction reversed due to evidentiary errors.
U.S. v. Ogando (10/20/2008, 2nd Cir. No. 05-0236-cr(L)) 2008 U.S. App. LEXIS 21786: Insufficient evidence of specific intent necessary for conspiracy to import ecstasy, importing ecstasy, conspiracy to distribute and possess with intent to distribute ecstasy, and possession with intent to distribute ecstasy.
U.S. v. Kapelioujnyj (10/22/2008, 2nd Cir. No. 07-3353-cr) 2008 U.S. App. LEXIS 22116: Conviction for conspiracy to sell stolen property is reversed due to insufficient evidence that (1) the defendant believed that the stolen property was worth at least five thousand dollars; and 2) the conspiracy involved goods that moved in interstate commerce.
U.S. v. Riggi (9/4/2008, 2nd Cir. No.06-1280-cr(L)) 541 F3d 94: Hearsay: Error to admit plea allocutions of non-testifying co-conspirators.
U.S. v. Joseph (/9/2008, 2nd Cir. No. 06-5911-cr) 542 F3d 13: 18 USC 2422(b): Conviction for using the Internet to solicit a person defendant believed to be a minor to engage in sexual activity reversed where the jury was permitted to convict on an invalid legal basis. Most of the jury instruction on the “enticement” element properly reflected the required focus on attempting or intending to entice. The instruction stated that the Government need show only “that the defendant attempted to convince or influence the person he believed was a 13-year-old girl to engage in a sexual act with him.” However, the alternative basis for conviction in that instruction – “or made the possibility of a sexual act with him more appealing” – did not reflect the requirement of an intent to entice. By providing the “more appealing” formulation as an alternative to the “convince or influence” language, which had previously been explained as examples of “enticing,” the challenged language permitted conviction even if defendant did not intend to entice the victim into engaging in a sexual act with him. Because the jury charge permitted conviction on an invalid basis and because the risk that the jury grounded its verdict on that basis was not insubstantial, the defendant was entitled to a new trial.
U.S. v. Kerley (9/25/2008, 2nd Cir. No. 07-1818-cr) 2008 U.S. App. LEXIS 20332: Rule of Lenity: Second count of failure to provide child support reversed.
U.S. v. Triumph Capital Group, Inc., (9/25/2008. 2nd Cir. No. 06-4970-cr) 2008 U.S. App. LEXIS 20333: Brady: Government improperly suppressed material exculpatory and impeaching evidence.
U.S. v. Marcus (8/14/2008, 2nd Cir. No. 07-4005) 2008 U.S. App. LEXIS 17222: Conviction and sentence for violation of sex trafficking statute, the forced labor statute, and the Trafficking Victims Protection Act (TVPA) reversed where: (1) district court committed plain error in failing to instruct the jury with respect to the date of the enactment of TVPA; and (2) the application of the TVPA in such a manner constituted an Ex Post Facto Clause violation.
U.S. v. Stein (8/28/2008, 2nd Cir. No. 07-3042) 2008 U.S. App. LEXIS 18524: Government deprived defendants of their right to counsel under the Sixth Amendment by causing defendant’s employer to place conditions on the advancement of legal fees to defendants, to cap the fees and ultimately to end them.
U.S. v. Kozeny (8/29/2008, 2nd Cir. No. 07-3107) 2008 U.S. App. LEXIS 18534: 18 USC 3292, and the structure and content of the law by which it was enacted, require the government to apply for a suspension of the running of the statute of limitations before the limitations period expires.
U.S. v. Crawford (7/17/2008, 2nd Cir. No. 06-5059) 533 F3d 133: Trial court improperly reopened proceedings after the parties’ summation and after the jury had been charged and begun deliberating.
U.S. v. Lorenzo (7/18/2008, 2nd Cir. Nos. 07-1435, 07-1855) 534 F3d 153: Drug importation, distribution, and conspiracy convictions are reversed where no evidence was offered that: 1) either defendant knowingly entered a conspiracy with the specific intent to violate the relevant statutes; or 2) defendant charged with aiding and abetting importation had knowledge or intent to violate the importation statute.
U.S. v. Finnerty (7/18/2008, 2nd Cir. No. 07-1104) 533 F3d 143: Securities-fraud conviction reversed where defendant’s conducting of “interpositioning” trades was not deceptive or misleading.
U.S. v. Hardwick (4/11/2008, 2nd Cir. No. 04-1369, 04-2886) 523 F3d 94: District court’s admission of a plea allocution was plain error under Crawford.
3rd Circuit Court of Appeals
Vazquez v. Wilson (12/19/2008, 3rd Cir. No. 07-2162) 550 F3d 270: Use of a non-testifying co-defendant’s statement at trial, even as redacted and subject to an instruction that the jury should not use it against defendant, was an unreasonable application of Bruton v. U.S. (68) 391 US 123 [88 SCt 1620], and its progeny.
U.S. v. Morena (11/19/2008, 3rd Cir. No. 07-1297) 547 F3d 191: Prosecutor’s repeated introduction of testimony concerning defendant’s involvement in the sale of illegal drugs was prejudicial to defendant and constituted prosecutorial misconduct, and the limiting instructions issued by the trial court were insufficient to cure the prejudice.
U.S. v. Green (9/2/2008, 3rd Cir. No. 06-2468) 541 F3d 176: (1) Miranda: Defendant’s responses and reactions of defendant to video evidence not admissible without Miranda; (2) Hearsay: The written statement of a confidential informant naming defendant as the person who had sold him drugs in a controlled buy was hearsay and not subject to an exception as a present-sense impression.
Kindler v. Horn (9/3/2008, 3rd Cir. No. 03-9010, 03-9011) 542 F3d 70: Death Penalty: (1) Mills v. Maryland: Jury instructions and verdict sheet that were used during the penalty phase of petitioner’s trial denied him due process of law pursuant to Mills v. Maryland (1988) 486 US 367; (2) IAC at penalty trial.
Jamison v. Klem (9/30/2008, 3rd Cir. No. 07-1045) 2008 U.S. App. LEXIS 20576: Withdrawal of Plea: Guilty plea was not knowing and intelligent because defendant was not told prior to pleading guilty that he was subject to a mandatory minimum prison sentence of five years.
U.S. v. Wecht (8/1/2008, 3rd Cir. No. 07-4767) 2008 U.S. App. LEXIS 16435: There is a presumptive First Amendment right to obtain the names of jurors prior to empanelment.
Wilson v. Vaughn (7/18/2008, 3rd Cir. No. 04-1623) 533 F3d 208: Defendant was prejudiced by his attorney’s failure to object to evidence relating to a racketeering charge.
U.S. v. Stevens (7/18/2008, 3rd Cir. No. 05-2497) 533 F3d 218: 18 USC 48 declared unconstitutional, where: 1) the criminalization of depictions of animal cruelty, rather than of the acts of cruelty themselves, was a content-based regulation on speech; 2) the speech in question did not constitute a new category of unprotected speech; and 3) the government did not show that the statute is narrowly tailored, using the least restrictive means, to achieve an important governmental interest.
American Civil Liberties Union v. Mukasey (7/22/2008, 3rd Cir. No. 07-2539) 534 F3d 181: Child Online Protection Act (COPA) held unconstitutional as restriction on speech subject to strict scrutiny.
U.S. v. Miller (6/02/2008, 3rd Cir. No. 06-5187) 527 F3d 54: Double jeopardy barred convictions for both receiving and possessing the same images of child pornography.
U.S. v. Ozcelik (5/27/2008, 3rd Cir. No. 06-4245) 527 F3d 88: Conviction and sentence for bribery and attempting to conceal, harbor, and shield from detection an illegal alien is reversed where defendant did not meet the burden of showing that the court’s alleged error in defining the term “official act” in its jury instructions substantially affected the outcome of the proceedings; but no reasonable juror could have found that defendant’s conduct tended to substantially facilitate an alien’s remaining in the United States illegally.
Abu-Jamal v. Horn (3/27/2008, 3rd Cir. No. 01-9014 & 02-9001) 2008 U.S. App. LEXIS 6399: Death sentence vacated where jury instructions and verdict form created a reasonable likelihood that the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon.
U.S. v. Cunningham (3rd Cir. 2/21/2008, No. 06-3899) 2008 U.S. App. LEXIS 3644: Evidence insufficient for the jury to find that defendant possessed a gun or aided and abetted his companions’ possession of the gun.
U.S. v. Williams (3rd Cir. 12/31/2007, No. 05-4153) 510 F3d 416: The question of whether a defendant breaches his plea agreement is reviewed de novo, and the burden is on the government to prove the breach by a preponderance of the evidence. The same contract principles that apply in analyzing a government breach also apply to defendant breach cases.
4th Circuit Court of Appeals
Gray v. Branker (6/24/2008, 4th Cir. No. 06-29) 529 F3d 220: Counsel rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that petitioner suffered from a severe mental illness, and it was reasonably probable that this failure prejudiced the outcome at sentencing.
U.S. v. Brooks (5/8/2008, 4th Cir. No. 05-4602, 05-4603, 05-4604, 05-4605, 05-4616) 524 F3d 549: Court erred in declining a request that it give instructions requiring the jury to make an essential threshold determination of drug quantity and establish the penalty range for each individual conspiracy defendant.
U.S. v. Hairston (4/3/2008, 4th Cir. No. 05-5178) 522 F3d 336: District court violated Rule 11 by not informing defendant before accepting his guilty pleas that he faced a mandatory fifteen-year minimum sentence.
U.S. v. Mitchell (3/6/2008, 4th Cir. No. 06-5169) 518 F3d 230: Conviction for aggravated identity theft reversed where defendant did not couple his use of the name with a sufficient amount of correct, distinguishing information.
5th Circuit Court of Appeals
Williams v. Quarterman (12/9/2008, 5th Cir. No. 05-20350) 551 F3d 352: Denial of federal habeas petition is reversed and remanded for a de novo hearing of appellant’s ineffective assistance of counsel claims because the appellate court did not specify which facts it accepted and which it rejected in denying the petition.
Taylor v. Cain (10/13/2008, 5th Cir. No. 07-30709) 2008 U.S. App. LEXIS 21408: State murder conviction reversed due to the erroneous admission of hearsay.
U.S. v. Hope (10/8/2008, 5th Cir. No. 07-60769) 2008 U.S. App. LEXIS 21098: Multiplicity: Improper to rely on continuing possession of one handgun to convict on two counts of being a felon in possession of a firearm absent evidence that the possession was interrupted.
Oliver v. Quarterman (8/14/2008, 5th Cir. No. 06-70006) 2008 U.S. App. LEXIS 17307: Jury’s consultation of the Bible during sentencing deliberations amounted to an improper external influence on deliberations.
Mahler v. Kaylo (7/28/2008, 5th Cir. No. 07-30024) 2008 U.S. App. LEXIS 15970: Prosecution withheld material impeachment evidence during defendant’s manslaughter trial in violation of Brady.
U.S. v. Baker (7/30/2008, 5th Cir. No. 06-40757) 2008 U.S. App. LEXIS 16112: Government exhibits that were the basis for the distribution conviction were improperly admitted, lacked proper foundation and authentication.
Moore v. Quarterman (6/26/2008, 5th Cir. No. 05-70038) 2008 U.S. App. LEXIS 13463: Petitioner suffered prejudice from the then uncertain state of Texas law on how to present Atkins evidence in state court.
Perez v. Cain (5/29/2008, 5th Cri. No. 08-30082) 2008 U.S. App. LEXIS 11515: State court unreasonably applied established Supreme Court precedent concerning sufficiency of the evidence because petitioner established at trial that he was insane at the time of the offense and that no rational juror could have found otherwise.
U.S. v. Alvarado-Valdez (3/12/2008, 5th Cir. No. 99-40370) 521 F3d 337: Convictions vacated in light of Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].
U.S. v. Garcia (3/31/2008, 5th Cir. No. 07-40245) 522 F3d 597: Conviction reversed due to prosecutorial misconduct during argument which bolstered the key witness.
Reliable Consultants, Inc. v. Earle (5th Cir., 2/12/2008, No. 06-51067) 2008 U.S. App. LEXIS 3102: Texas statute making it a crime to promote or sell sexual devices impermissibly burdens individuals’ substantive due process right to engage in private intimate conduct of his or her choosing.
U.S. v. Howard (5th Cir. 2/12/2008, No. 07-20212) 2008 U.S. App. LEXIS 3100: Erroneous “honest services” instruction required reversal of conviction for falsifying books and records under Yates v. U.S. (1957) 354 US 298 (1957).
Tassin v. Cain (5th Cir. 2/14/200, No. 07-70013) 2008 U.S. App. LEXIS 3208: Capital murder conviction vacated because jury was not informed of a beneficial sentencing agreement.
U.S. v. Guanespen-Portillo (5th Cir. 1/15/2008, No. 06-51100) 2008 U.S. App. LEXIS 807: When the evidence clearly reflects a question of the voluntariness of a confession, the trial court must raise the issue on its own motion.
6th Circuit Court of Appeals
Avery v. Prelesnik (11/25/2008, 6th Cir. No. 07-2522) 548 F3d 434: Counsel ineffective where potential alibi witnesses coupled with an otherwise weak case rendered the failure to investigate the testimony sufficient to “undermine confidence” in the outcome of the jury verdict.
Mason v. Mitchell (10/3/2008, 6th Cir. No. 05-4511) 2008 U.S. App. LEXIS 20840: IAC at Death Penalty Trial: Counsel failed to interview petitioner’s family members and investigate obvious red flags contained in state records suggesting that petitioner’s childhood was pervaded by violence and exposure to drugs in the home from an early age.
Boykin v. Webb (9/4/2008, 6th Cir. No. 06-5775) 541 F3d 638: Counsel Conflict: Sixth Amendment right to effective assistance of counsel was violated at trial and on appeal due to the actual conflict of interest.
Smith v. Berghuis (9/24/2008, 6th Cir. No. 06-1463) 543 F3d 326: Jury Composition Challenge: Sixth Amendment right to a jury drawn from a fair cross-section of the community violated due to systematic underrepresentation of African Americans.
U.S. v. Driver (8/1/2008, 6th Cir. No. 04-4470, 04-4471) 2008 U.S. App. LEXIS 16259: The evidence was not sufficient to convict defendant of the substantive RICO and RICO conspiracy offenses.
U.S. v. Wheeler (8/1/2008, 6th Cir. No. 05-3140) 2008 U.S. App. LEXIS 16257: Indictment for substantive RICO and RICO conspiracy offenses violated the Double Jeopardy Clause because of an earlier prosecution.
Moore v. Haviland (7/15/2008, 6th Cir. No. 07-3380) 531 F3d 393: Trial court’s failure to rule on his requests to proceed pro se deprived him of his Sixth Amendment right to self-representation.
U.S. v. Gray (4/2/2008, 6th Cir. No. 05-4482, 06-3086, 06-3209) 521 F3d 514: Defendants’ convictions under the Hobbs Act required reversal based on challenges to the sufficiency of the evidence.
Gray v. Moore (3/26/2008, 6th Cir. No. 06-3547) 520 F3d 616: Kidnapping conviction reversed where Ohio appellate court unreasonably applied Illinois v. Allen (1970) 397 US 337.
U.S. v. Bell (6th Cir. 2/14/2008, No. 06-6248) 2008 U.S. App. LEXIS 3152: Drug- and firearm-related offenses vacated because the district court erred by permitting the government to introduce evidence of defendant’s prior drug convictions under FRE 404(b) and in violation of defendant’s due process right to a fair trial.
U.S. v. Odeneal (6th Cir. 2/22/2008, No. 06-5885, 06-5915) 2008 U.S. App. LEXIS 3708: Conviction reversed due to Batson [Batson v. Kentucky (1976) 476 US 79 [90 LEd2d 69; 106 SCt 1712]] error.
Bies v. Bagley (6th Cir. 2/27/2008, No. 06-3471) 2008 U.S. App. LEXIS 4160: Double Jeopardy Clause bars respondent-warden’s claim that state should be permitted to relitigate the mental retardation finding in light of Atkins v. Virginia (2002) 536 US 304.
In re: McDonald (6th Cir. 1/10/2008, No. 06-4120) 2008 U.S. App. LEXIS 435: Permission to file a second or successive habeas corpus petition granted where key witness in the matter later claimed that she provided perjured testimony against petitioner.
U.S. v. Swafford (6th Cir. 1/17/2008, No. 06-5878) 2008 U.S. App. LEXIS 973: Conviction on two conspiracy counts suffered from an impermissible variance (duplicity) because in each charge there were multiple conspiracies with different participants; and 2) the district court erred by denying defendant’s amended motion to strike or elect the substantive counts.
7th Circuit Court of Appeals
U.S. v. Dixon (12/22/2008, 7th Cir. No. 08-1438, 08-2008) 551 F3d 578: All the conduct for which one defendant was punished, not merely the sex crimes and the travel and the change of residence, occurred before SORNA (Sex Offender Registration and Notification Act, 18 USC 2250) was made applicable to him by regulation thus violating ex post facto principles.
U.S. v. Colon (12/8/2008, 7th Cir. No. 07-3929) 549 F3d 565: Defendant’s routine buyer-seller relationship with the participants in a drug conspiracy did not by itself make him a co-conspirator or an aider and abettor of the conspiracy.
Smiley v. Thurmer (9/5/2008, 7th Cir. No. 07-2901) 542 F3d 574: Miranda: Murder conviction vacated.
U.S. v. Blanchard (9/8/2008, 7th Cir. No. 07-2780) 542 F3d 1133: Judicial Testimony: Comments made by the trial judge during a pretrial suppression hearing regarding the credibility of a government witness were improperly admitted at trial as “judicial testimony” in violation of FRCP 605.
Osagiede v. U.S. (9/9/2008, 7th Cir. No. 07-1131) 543 F3d 399: IAC; Foreign Nationals: Counsel’s failure to raise Violations of Article 36 of the Vienna Convention was deficient performance.
Wrinkles v. Buss (8/12/2008, 7th Cir. No. 05-2747) 2008 U.S. App. LEXIS 17150: Counsel’s failure to object to the trial judge’s blanket policy requiring restraints constituted ineffective assistance.
U.S. v. Thornton (8/26/2008, 7th Cir. No. 07-2839) 2008 U.S. App. LEXIS 18329: Jury instruction on the bank-robbery charge erroneously failed to require the jury to find actual intimidation.
Toliver v. McCaughtry (8/27/2008, 7th Cir. No. 06-3316) 2008 U.S. App. LEXIS 18373: Habeas claim remanded where state court did not resolve factual questions of whether petitioner’s trial counsel’s performance fell below an objective standard of reasonableness and whether the prosecutor had received a letter that should have been disclosed as Brady evidence.
Stallings v. U.S. (7/30/2008, 7th Cir. No. 06-3914) 536 F3d 624: Appellate counsel’s failure to raise appropriate claims regarding sentencing constituted ineffective assistance.
U.S. v. Gladish (7/31/2008, 7th Cir. No. 07-2718) 536 F3d 646: Merely transmitting explicit sexual proposals over the internet to a would-be victim did not constitute the substantial step toward completion of a crime required for an attempt conviction.
Carlson v. Jess (5/19/2008, 7th Cir. No. 07-3428) 526 F3d 1018: Grant of a writ of habeas corpus based on a denial of a motion to substitute counsel and for a denial of a motion for a continuance is affirmed where: 1) the trial court made unreasonable findings of fact that the communication between the petitioner and his trial counsel had not broken down; 2) the court of appeals did not look at the evidence presented by petitioner and merely relied on the court’s factual findings; 3) the trial court’s concern for delay in the trial was so rigid as to be arbitrary; 4) the age of the victim as an excuse not to delay the trial was unpersuasive since the victim did not make his claim until six years after the events took place; and 5) denial of petitioner’s right to retain his counsel of choice had an adverse effect on the presentation of his case.
U.S. v. Salgado (3/17/2008, 7th Cir. No. 07-2163, 07-2393) 519 F3d 411: 18 USC 2114(a) which criminalizes attempting to rob a person having custody of money belonging to the U.S. requires possession of mail or federal property.
Price v. Thurmer (2/1/2008, No. 06-4116) 514 F3d 729: IAC re: insanity issues.
U.S. v. Ryals (7th Cir. 1/10/2008, No. 06-4373) 2008 U.S. App. LEXIS 445: Court abused its discretion in denying the defense counsel’s motion to withdraw before the sentencing hearing.
U.S. v. Tyler (7th Cir. 1/10/2008, No. 06-2904) 2008 U.S. App. LEXIS 446: Officers who detained defendant did so without reasonable suspicion of criminal activity since they were mistaken about the law they believed defendant to have violated.
U.S. v. Shaaban (7th Cir. 1/28/2008, No. 06-2801) 2008 U.S. App. LEXIS 1800: IAC re: filing of petition for rehearing.
8th Circuit Court of Appeals
U.S. v. Street (12/1/2008, 8th Cir. No. 07-2600, 08-2109) 548 F3d 618: Error to admit (1) testimony that defendant had admitted failing a polygraph examination and (2) extensive testimony on the violent, lawless tendencies of a particular motorcycle gang.
U.S. v. Spotted Elk (11/26/2008, 8th Cir. No. 07-1914) 548 F3d 641: (1) Indictment was misleading as it suggested that receiving as well as giving a gun in exchange would constitute “use” of a gun in connection with the drug transaction; (2) the district court’s findings regarding the amount of drugs for which co-defendant was responsible at sentencing were based on a legally erroneous interpretation of section 1B1.3.
Armstrong v. Kemna (7/24/2008, 8th Cir. No. 06-1424) 534 F3d 857: Trial counsel was ineffective in failing to exercise reasonable diligence in efforts to secure the attendance of the out-of-state witnesses.
U.S. v. Smith (7/30/2008, 8th Cir. No. 07-3592) 535 F3d 883: (1) Mere presence of drug residue, i.e., a de minimis amount of drugs, and firearms alone is sufficient to prove the “in connection with” requirement of U.S.S.G. section 2K2.1(b)(6) when the “felony offense” is drug possession; (2) Whether a firearm “facilitated, or had the potential of facilitating” a felony offense of drug possession must be determined based on the facts of each individual case.
U.S. v. Kirk (6/19/2008, 8th Cir. No. 07-3215) 528 F3d 1102: Conviction for using a firearm during and in relation to a drug trafficking crime is reversed and remanded where in light of Watson v. US (2007) ____ US ____ [169 LEd2d 472; 128 SCt 579], a person does not “use” a firearm when he receives it in exchange for drugs.
U.S. v. Huntley (4/18/2008, 8th Cir. No. 07-3026) 523 F3d 874: Conviction and sentence for possession of a firearm during the commission of a drug trafficking crime is reversed and remanded where the district court’s jury instruction, though correct when given, was inconsistent with Supreme Court’s recent ruling in Watson v. U.S. (12/10/2007, No. No. 06-571) ____ US ____ [169 LEd2d 472; 128 SCt 579].
U.S. v. Rojas (3/28/2008, 8th Cir. No. 07-1287) 520 F3d 876: Error to deny post-verdict hearing where victim recanted her testimony.
U.S. v. Peroceski (3/28/2008, 8th Cir. No. 07-1336) 520 F3d 886: Possession of dangerous weapon in connection with a drug crime, the government must prove: 1) the weapon was present; and 2) it was not clearly improbable that the gun was connected to the offense.
9th Circuit Court of Appeals
Gonzalez v. Duncan (12/20/2008, 9th Cir. No. 06-56523) 551 F3d 875: A sentence of 28 years to life imprisonment under California’s “Three Strikes” law violates the Eighth Amendment where: 1) the offense was Petitioner’s failure to update his annual sex offender registration within five working days of his birthday; and 2) he was living at his registered address throughout the relevant time period. Habeas relief is warranted because the state court’s application of the gross disproportionality principle was objectively unreasonable.
Chambers v. McDaniel (12/9/2008, 9th Cir. No. 07-15773) 549 F3d 1191: Petitioner’s federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation.
Sechrest v. Ignacio (12/5/2008, 9th Cir. No. 04-99004) 549 F3d 789: Death penalty sentence invalidated for (1) gross misconduct by prosecutor in telling jurors during voir dire and argument that defendant could be released on parole if given a life sentence and (2) ineffective assistance of counsel when trial attorney allowed a witness, who had evaluated defendant at the defense’s request, to testify for the prosecution.
Doody v. Schriro (11/20/2008, 9th Cir. No. 06-17161) 548 F3d 847: Police coercion of defendant’s confession over a twelve-hour period of interrogation rendered it involuntary.
U.S. v. Nevils (11/20/2008, 9th Cir. No. 06-50485) 548 F3d 802: Conviction for being a felon in possession of firearms and ammunition is reversed where the evidence offered with respect to the element of knowing possession was insufficient.
U.S. v. Schales (10/20/2008, 9th Cir. No. 07-10288) 2008 U.S. App. LEXIS 21872: Lesser Included Offenses: Possessing child pornography in violation of 18 USC 2252(a)(4)(B) is LIO of receiving child pornography (18 USC 2252(a)(2).) Conviction of both offenses violates double jeopardy.
U.S. v. McTiernan (10/21/2008, 9th Cir. No. 07-50430) 2008 U.S. App. LEXIS 21881: Withdrawal of Guilty Plea: Plea vacated where proper legal advice on the suppressibility of evidence could plausibly have motivated a reasonable person not to have pled guilty. 18 USC 2511 violated and recording suppressible when made with intent to violate state or federal law.
Styers v. Schriro (10/23/2008, 9th Cir. No. 07-99003) 2008 U.S. App. LEXIS 22054: Death Penalty: State court failed to properly review all aggravating and mitigating evidence required after finding one of the aggravating factors used in sentencing to be invalid.
Paulino v. Harrison (9/4/2008, 9th Cir. No. 07-55429) 542 F3d 692: Batson: Petitioner made a strong prima facie showing of discriminatory intent in the pattern of the prosecutor’s striking of potential jurors and the state offered no non-speculative evidence of non-discriminatory intent in jury selection.
U.S. v. Lazarenko (9/26/2008, 9th Cir. No. 06-10592) 2008 U.S. App. LEXIS 20336: (1) 18 USC 1343; 18 USC 1346: Wire transfers not part of the execution of the scheme in question cannot support conviction for wire fraud. (2) 18 USC 2314: Interstate transfer of stolen property requires direct tracing of the stolen proceeds, and evidence of a comingled account will not suffice.
U.S. v. Straub (8/15/2008, 9th Cir. No. 07-30182) 2008 U.S. App. LEXIS 17426: For a defendant to compel immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process, or (b) the prosecution granted immunity to a government witness to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.
Tilcock v. Budge (8/15/2008, 9th Cir. No. 07-16184) 2008 U.S. App. LEXIS 17506: Petitioner is entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel at sentencing.
U.S. v. Miranda-Lopez (7/17/2008, 9th Cir. No. 07-50123) 532 F3d 1034: The crime of aggravated identity theft, 18 USC 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document.
Houston v. Schomig (7/22/2008, 9th Cir. No. 06-15523) 533 F3d 1076: Remand was required for an evidentiary hearing to determine whether defendant’s right to conflict-free counsel was violated.
Moore v. Czerniak (7/28/2008, 9th Cir. No. 04-15713) 534 F3d 1128: Counsel’s failure to move to suppress defendant’s involuntary confession fell below an objective standard of reasonableness.
Delgadillo v. Woodford (6/3/2008, 9th Cir. No. 07-55089) 527 F3d 919: A state habeas court may apply Crawford v. Washington (2004) 541 US 36, retroactively on collateral review.
Belmontes v. Ayers (6/13/2008, 9th Cir. No. 01-99018) 2008 U.S. App. LEXIS 12630: Petitioner received inadequate representation by his counsel at the penalty phase of his trial, particularly with regard to counsel’s investigation and presentation of mitigating evidence.
U.S. v. Chapman (6/23/2008, 9th Cir. No. 07-50000) 528 F3d 1215: (1) 18 USC 111(a) allows misdemeanor convictions only where the acts constitute simple assault.(2) Defendant’s nonviolent civil disobedience in “tensing up” did not constitute a simple assault.
Brown v. Farwell (5/5/2008, 9th Cir. No. 07-15592) 525 F3d 787: Habeas relief granted on due process grounds because of improper DNA math computations.
U.S. v. Chapman (5/6/2008, 9th Cir. No. 06-10316, 06-10610) 524 F3d 1073: Indictment properly dismissed and retrial was precluded because the government egregiously failed to meet its constitutional obligations under Brady and Giglio, and committed flagrant prosecutorial misconduct.
U.S. v. Caruto (5/12/2008, 9th Cir. No. 07-50041) 526 F3d 445: Conviction reversed under due process principles because prosecutor’s closing argument emphasized omissions from defendant’s post-arrest statement that existed only because she invoked her right to counsel under Miranda. (Amended by United States v. Caruto (9th Cir. 6/18/2008) 2008 U.S. App. LEXIS 12758.)
Correll v. Ryan (5/14/2008, 9th Cir. No. 03-99006) 2008 U.S. App. LEXIS 10431: Death penalty case remanded for a new penalty hearing where defendant did not have an opportunity to offer mitigating evidence. (Amended opinion on denial of rehearing en banc.)
Mandujano-Real v. Mukasey (5/22/2008, 9th Cir. No. 06-74186) 526 F3d 585: Identity theft under Oregon Revised Statute section 165.800 is not categorically a conviction for an aggravated felony theft offense for the purposes of 8 USC 1101(a)(43)(G) of the Immigration and Nationality Act (INA).
U.S. v. Hinkson (5/30/2008, 9th Cir. No. 05-30303) 526 F3d 1262: Conviction reversed where it substantially rested upon the testimony of a witness who had been conclusively shown to be a forger and a liar.
Osborne v. Dist. Attorney’s Office for the Third Judicial Dist. (4/2/2008, 9th Cir. No. 06-35875) 521 F3d 1118: Prisoner has due process right of access to the evidence for purposes of post-conviction DNA testing. Plaintiff’s confession during parole proceedings did not necessarily trump the materiality of physical evidence or the right to obtain post-conviction access to evidence.
U.S. v. Perdomo-Espana (4/14/2008, 9th Cir. No. 07-50232) 522 F3d 983: The test for entitlement to a defense of necessity is objective, as opposed to subjective. The defendant must establish that a reasonable jury could conclude that: 1) he was faced with a choice of evils and reasonably chose the lesser evil; 2) he reasonably acted to prevent imminent harm; 3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 4) he reasonably believed there were no other legal alternatives to violating the law.
U.S. v. Mendoza (3/3/2008, 9th Cir. No. 06-50447) 518 F3d 706: The defendant’s Sixth Amendment rights were violated where the government was responsible for an eight-year delay between indictment and arrest.
Blanco v. Mukasey (3/3/2008, 9th Cir. No. 06-71385) 518 F3d 714: In the context of immigration law, a misdemeanor conviction for false identification to a peace officer under California PC 148.9(a) is not a crime involving moral turpitude.
U.S. v. Alghazouli (3/4/2008, 9th Cir. No. 06-50422) 517 F3d 1179: In the context of 18 USC 545, which prohibits fraudulent or knowing importation of merchandise “contrary to law,” the term “law” in section 545 includes a “regulation” when, and only when, a statute specifies that violation of the regulation is a crime. Also, the term “knowingly” in 42 USC 7413(c) of the Clean Air Act requires that the defendant know the facts constituting the violation.
U.S. v. Rodriguez (3/10/2008, 9th Cir. No. 07-10217) 518 F3d 1072: The “clear statement” rule of Davis v. U.S. (1994) 512 US 452, 462, applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights. Prior to obtaining such a waiver, however, an officer must clarify the meaning of an ambiguous or equivocal response to the Miranda warning before proceeding with general interrogation.
U.S. v. Davenport (3/20/2008, 9th Cir. No. 06-30596) 519 F3d 940:: The offense of possessing child pornography (18 USC 2252A(a)(5)(B)) is a lesser included offense of the receipt of child pornography (18 USC 2252A(a)(2)). Simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment’s prohibition on double jeopardy.
Larson v. Palmateer (9th Cir. 2/13/2008, No. 04-35465) 2008 U.S. App. LEXIS 3097: Visibly restraining a criminal defendant is not allowed unless the trial court finds the restraints are necessary under the particular circumstances of the case.
Anderson v. Terhune (9 Cir. 2/15/2008, No. 04-17237) 2008 U.S. App. LEXIS 3227: Where the defendant indicated that he wanted to end the interrogation by stating repeatedly that he was “through with this,” that he wanted to “be taken into custody,” and that “I plead the Fifth,” he unequivocally invoked his right to remain silent, and state court’s conclusion that defendant’s invocation of right was ambiguous was an unreasonable determination of fact and contrary to Davis v. United States (1994) 512 US 452, 459 [a suspect need not speak with the discrimination of an Oxford don.] (See also Michigan v. Mosely (1975) 423 US 96, 103.) Additionally, the state court’s determination that defendant waived right where he responded to officers’ questions after the officers ignored his invocation of right was similar error.
Cerezo v. Mukasey (9th Cir. 1/14/2008, No. 05-74688, 05-75213) 2008 U.S. App. LEXIS 712: A violation of California Vehicle Code (VC) 20001(a), which criminalizes leaving the scene of an accident resulting in bodily injury or death, is not categorically a crime involving moral turpitude for purposes of 8 U.S.C 1227(a)(2)(A)(ii).
Frantz v. Hazey (9th Cir. 1/22/2008, No. 05-16024) 2008 U.S. App. LEXIS 1191: Petitioner’s Sixth Amendment right to self-representation was violated when standby counsel had an in-chambers discussion without his presence or consent. The appellate court reversed the district court’s denial of a habeas petition challenging the petitioner’s exclusion from a chambers conference in which his advisory counsel participated and discussed how the judge should respond to a query from the deliberating jury. Reviewing de novo the petitioner’s Sixth Amendment claim regarding his exclusion from the chambers conference, the court held that because a pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, standby counsel’s solo participation in the conference could have violated the petitioner’s right to self-representation. The panel remanded to the district court for an evidentiary hearing concerning the circumstances during the course of the trial and after the jury retired that gave rise to the petitioner’s exclusion from the conference, including whether he was accurately informed of the purpose of the conference and given the opportunity to appear but declined to do so, and for a determination whether the petitioner’s Faretta/McKaskle rights to self-representation were violated by that exclusion.
Estrada v. Scribner (9th Cir. 1/23/2008, No. 06-55013) 2008 U.S. App. LEXIS 1256: Juror affidavits detailing jury discussions are admissible evidence. The appellate court affirmed the district court’s denial of a habeas corpus petition challenging a conviction for second degree murder and taking a vehicle without the owner’s consent. It affirmed the district court’s determination that under FRE 606(b) it could not consider certain portions of the jurors’ affidavits proffered by the petitioner because they addressed the subjective effect of evidence on particular jurors, but that it could consider juror testimony about extrinsic evidence improperly brought to the jury’s attention. The panel held that the district court and the state courts erred in finding inadmissable portions of declarations discussing a juror’s introduction of his mother’s murder into sentencing discussions because the mother’s murder became extrinsic evidence.
U.S. v. Lococo (9th Cir. 1/28/2008, No. 05-50550) 2008 U.S. App. LEXIS 1791: Court erred in sentencing defendant under 21 U.S.C 841(b)(1)(B) based on the amount of crack “involved” in the conspiracy, without finding that defendant knew or could reasonably have foreseen that the conspiracy involved crack. (Amended opinion.)
U.S. v. Banks (9th Cir. 1/29/2008, No. 05-10053) 2008 U.S. App. LEXIS 1867: District court erred by instructing the jury that it could convict defendant under the VICAR statute if it found that any element of his motivation in assaulting a rival gang member was to maintain his membership in his gang. Convictions for use of a firearm in furtherance of a crime of violence are also reversed as they were predicated on the VICAR convictions. (Amended opinion.)
10th Circuit Court of Appeals
Hicks v. Franklin (11/17/2008, 10th Cir. No. 07-7084) 546 F3d 1279: The trial court committed constitutional error in accepting the defendant’s plea given the facts admitted by the defendant and his assertion of innocence regarding the act or acts responsible for the decedent’s death and defendant’s guilty plea was not voluntary as he did not receive adequate notice of the offense.
U.S. v. Phillips (10/1/2008, 10th Cir. No. 07-3135, 07-3143) 2008 U.S. App. LEXIS 20702: Immigration Fraud [18 USC 1546(a)]: Conduct did not constitute immigration fraud.
U.S. v. Yarbrough (6/3/2008, 10th Cir. No. 06-5229) 527 F3d 1092: Good character as defense theory. Conviction reversed where the court abused its discretion in excluding defendant’s character evidence and such exclusion deprived him of important evidence relevant to a controverted question at the center of his defense.
U.S. v. Redcorn (6/9/2008, 10th Cir. No. 06-5206, 06-5207) 528 F3d 727: Insufficient evidence of wire fraud.
U.S. v. Hays (5/20/2008, 10th Cir. No. 07-8039) 526 F3d 674: The Wyoming battery statute does not satisfy the “use of physical force” element of the applicable federal statutory definition of a misdemeanor crime of domestic violence.
U.S. v. Nacchio (3/17/2008, 10th Cir. No. 07-1311) 519 F3d 1140: The convictions of Joseph Nacchio, the former CEO of Qwest Communication, for insider trading are reversed and remanded for a new trial where the trial court judge erred by excluding an expert witness for the defense who intended to provide an economic analysis of Nacchio’s trading patterns, and “testify about the economic importance of the allegedly material inside information.”
U.S. v. Hill (10th Cir. 1/15/2008, No. 07-3034) 2008 U.S. App. LEXIS 878: A conviction for being a felon in possession of a firearm is reversed where at no time was defendant subject to a sentence greater than one year for a prior Kansas conviction, and thus he did not have a qualifying conviction for purposes of 18 U.S.C 922(g)(1).
11th Circuit Court of Appeals
U.S. v. Schwartz (9/5/2008, 11th Cir. No. 05-11715) 541 F3d 1331: (1) Bruton: Prosecutor improperly permitted to introduce into evidence an out-of-court statement by codefendant. (2) Prejudice on Appeal; Prosecutor Argument to Jury: Admission of codefendant’s statement was prejudicial in light of prosecutor’s reliance on it during closing argument.
Williams v. Allen (9/17/2008, 11th Cir. No. 07-11393) 542 F3d 1326: (1) Death Penalty: Trial counsel’s investigation of mitigating evidence in defendant’s background fell short of prevailing professional norms. (2) Batson: Defendant satisfied the exhaustion requirement as to his Batson claim.
U.S. v. Archer (6/26/2008, 11th Cir. No. 07-11488) 2008 U.S. App. LEXIS 13462: In light of Supreme Court’s decision in U.S. v. Begay (2008) ____ US ____ [170 LEd2d 490; 128 SCt 1581], the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.
Ferguson v. Culliver (5/13/2008, 11th Cir. No. 07-13030) 527 F3d 1144: In federal habeas proceeding per 28 USC 2254, the district court must review the state trial court record, rather than rely solely on the state appellate court’s findings as to what the trial record contained.
U.S. v. Mendez (5/21/2008, 11th Cir. No. 07-13443) 528 F3d 413: Conviction for conspiracy to defraud the United States is reversed where the United States was not the target of defendant’s crime.
U.S. v. Madera (5/23/2008, 11th Cir. No. 07-12176) 528 F3d 852: Indictment for failing to register as a sex offender under the Sexual Offender Registration and Notification Act (SORNA) should be dismissed where defendant’s indictment concerned his failure to register during the gap period between SORNA’s enactment and the Attorney General’s retroactivity determination.
U.S. v. Westry (4/16/2008, 11th Cir. No. 06-13847) 524 F3d 1198: Finding that a defendant was a member of the drug conspiracy prior to the victim’s death was based on insufficient evidence and the government conceded that the district court erroneously applied a death enhancement to defendants’ sentences on substantive drug distribution charges, as the criminal conduct giving rise to the substantive charges occurred after the victim’s death.
Lawhorn v. Allen (3/11/2008, 11th Cir. No. 04-11711) 519 F3d 1272: Death sentence vacated where defense attorney’s strategic maneuver in waiving his closing argument prejudiced the defendant.
U.S. v. Burgest (3/13/2008, 11th Cir. No. 06-11351) 519 F3d 1307: The dual sovereignty doctrine applies to the Sixth Amendment right to counsel. Where conduct violates laws of separate sovereigns, the offenses are distinct for purposes of the Sixth Amendment right to counsel.
U.S. v. Svete (3/26/2008, 11th Cir. No. 05-13809) 521 F3d 1302: Multiple convictions for conspiracy, mail fraud, mail laundering, and interstate transportation of money obtained in fraud reversed due to omission of requirement of ordinary prudence by investors in Eleventh Circuit’s mail fraud instruction (Pattern Instruction 50.1).
D.C. Circuit Court of Appeals
U.S. v. Law (6/13/2008, D.C. Cir. No. 05-3091) 528 F3d 888: (1) The evidence was insufficient to support a conviction for conspiring to launder money; (2) the conviction for selling crack cocaine merges with a conviction for selling the same drugs near a school, and one conviction is vacated for violation of the Double Jeopardy Clause; and (3) insufficient evidence supported a conviction of maintaining a drug residence.
U.S. v. Bryant (4/25/2008, D.C. Cir. No. 06-3129) 523 F3d 349: Conviction for possession of an unregistered firearm reversed where the trial was commenced more than 70 non-excludable days after the speedy trial clock began running, in violation of the Speedy Trial Act (STA).
U.S. v. Villanueva-Sotelo (D.C. Cir. 2/15/2008, No. 07-3055) 2008 U.S. App. LEXIS 3254: Under the federal aggravated identity theft statute, 18 USC 1028A(a)(1), the mens rea requirement extends to the phrase “of another person,” meaning that the government must prove the defendant actually knew the identification in question belonged to someone else.
U.S. v. Lacey (D.C. Cir. 1/8/2008, No. 06-3051) 511 F3d 212: Conviction for theft and distribution of cocaine base reversed for failure to instruct on issues of whether cocaine base was smokable or that it was crack.
U.S. v. Sheehan (D.C. Cir. 1/11/2008, No. 07-3002) 2008 U.S. App. LEXIS 479: Conviction of Iraq War protester Cindy Sheehan for demonstrating without a permit on the White House sidewalk is reversed because the charged crime did not exist and she was prevented from offering a viable defense.
California Courts of Appeal
People v. Lawrence (1/2/2008, B193831) 158 CA4th 685: Where the defendant waived his right to counsel and invoked his right to self-representation under Faretta, after trial court adequately advised him of dangers and advised him he would be afforded no special treatment, and waiver form defendant completed notified him of his rights and warned him about disadvantages of self-representation with specificity, defendant’s waiver was knowing and voluntary. However, where the defendant changed his mind during jury selection and requested the appointment of counsel at that time and also at the close of jury selection, the court abused its discretion in denying defendant’s request at end of first day of trial, (People v. Elliott (77) 70 CA3d 984, 997-998; People v. Hill (83) 148 CA3d 744, 760), even though the right to reobtain counsel is not absolute. (See Id. at 993). Most courts in California have not found the error to be structural, People v. Ngaue (1991) 229 CA3d 1115, 1126, People v. Elliott, supra 70 Cal.App.3d at p. 998), but this court found that the error was “structural” and required reversal without analysis of prejudicial effect because deprivation of counsel at a critical stage of a criminal trial constitutes federal constitutional error affecting framework within which trial proceeds with consequences that are necessarily unquantifiable and indeterminate. (United States v. Gonzalez-Lopez (2006) 548 US (165 LEd2d 409; 126 SCt 2557].)
People v. Paredes (1/16/2008, E040123) 158 CA4th 1516: Disqualification and removal of appellant’s court-appointed counsel was an abuse of discretion. The error did not violate Noriega’s right to counsel under the federal Constitution, but it did violate his right to counsel as guaranteed by the state Constitution. The error was reversible per se. The violation of the right to counsel defies a harmless error analysis; its consequences are necessarily unquantifiable and indeterminate.
Supreme Court of Delaware
Hardy v. State of Delaware (12/9/2008, No. 126, 2008) 2008 Del. LEXIS 554: Prosecutor improperly vouched for the State’s case by commenting, in his closing remarks to the jury, that falsely reported rapes do not go to trial.
Swanson v. State of Delaware (9/16/2008, No. 564, 2007) 956 A2d 1242: Double Jeopardy; Mistrial: Conviction vacated on double-jeopardy grounds where there was no manifest necessity for a mistrial in defendant’s first trial when a witness asserted her privilege against self-incrimination.
Harris v. State of Delaware (8/29/2008, No. 125, 2008) 2008 Del. LEXIS 390: Six-year delay in imposing sentence, without any justifiable reason or explanation, violated defendant’s right to a speedy sentencing.
Supreme Court of Florida
Tennis v. State of Florida (12/11/2008, No. SC06-730) 2008 Fla. LEXIS 2380: Trial court erroneously failed to hold a hearing to determine whether Defendant’s unequivocal request for self-representation was a knowing and intelligent waiver of his right to court-appointed counsel.
Poole v. State of Florida (12/11/2008, No. SC05-1770) 2008 Fla. LEXIS 2386: Prosecutor’s improper cross-examination of defense witnesses constituted inadmissible nonstatutory aggravation. The trial court erred in overruling defense counsel’s objection after the prosecutor asked questions regarding unproved prior arrests and the unproved content of a tattoo.
In re: Standard Jury Instructions in Criminal Cases (10/16/2008) – Report No. 2008-05, No. SC08-744; Report No. 2007-08, No. SC07-1841; Report No. 2007-08, No. SC08-699: Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and eliminates two current instructions.
Calabro v. State of Florida (9/18/2008, No. SC07-1105) 2008 Fla. LEXIS 1611: Statements of Defendant; Arraignment: Statements made by defendant during his arraignment indicating his desire to engage in plea negotiations were not admissible against him at his criminal trial.
Florida v. Powell (9/29/2008, No. SC07-2295) 2008 Fla. LEXIS 1647: Miranda: Failure to provide express advice of the right to the presence of counsel during questioning.
Inquiry Concerning a Judge (9/29/2008, No. 06-52 Re: Aleman, No. SC07-198) 2008 Fla. LEXIS 1645: Judicial Misconduct: Recommendation for a public reprimand is approved for a judge who imposed unreasonable requirements on defense attorneys who moved for her disqualification in a capital murder case, and subsequently threatened the attorneys with contempt.
Bigham v. Florida (7/10/2008, No. SC05-245) 2008 Fla. LEXIS 1232: Evidence was insufficient to prove that defendant had the conscious purpose to kill the victim.
Rivera v. Florida (6/12/2008, FL No. SC05-1873) 2008 Fla. LEXIS 1069: (1) an evidentiary hearing was required with regard to whether the state permitted false or misleading evidence to be presented to the jury; (2) an evidentiary hearing was required with regard to the issue of newly discovered exculpatory DNA evidence.
State of Florida v. Belvin (5/1/2008, FL No. SC06-593) 2008 Fla. LEXIS 758: Portions of a breath test affidavit containing the operator’s procedures and observations in administering the breath test were testimonial and their admission at defendant’s criminal DUI trial without a prior opportunity to cross-examine the operator violated his right of confrontation under Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].
State of Florida v. Johnson (5/1/2008, FL No. SC06-86) 982 So2d 672: Admission of lab report establishing the illegal nature of substances possessed by a defendant violated the confrontation clause and Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354], when the person who performed the lab test does not testify.
Garzon v. State of Florida (4/10/2008, FL No. SC06-2235, SC06-2290) 980 So2d 1038: Use of the “and/or” conjunctive phrase between the names of defendants in criminal jury instructions, the Supreme Court of Florida finds that the use of “and/or” was error.
State of Florida v. Kettell (4/24/2008, FL No. SC07-573) 980 So2d 1061: The wanton or malicious intent element of the crime of wantonly or maliciously shooting into a building, as defined by Florida Statutes section 790.19, is not established solely by evidence that a defendant fired a shot at, within, or into a building. The state also must prove that the shooting was done wantonly or maliciously as those terms are defined in the standard jury instruction.
Carrin v. State of Florida (3/6/2008, Fla. No. SC04-1251) 978 So2d 115: Florida Statutes section 924.34 (2001) is unconstitutional “to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.” (See also State v. Sigler (Fla. 2007) 967 So2d 835, 845.)
State of Florida v. Contreras (3/13/2008, Fla. No. SC05-1767) 979 So2d 896: Discovery deposition does not satisfy Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].
Martinez v. State of Florida (2/21/2008, No. SC06-1597) 2008 Fla. LEXIS 224: Merger Doctrine. For the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.
State of Florida v. Larzelere (2/28/2008, No. SC05-611, SC06-148) 2008 Fla. LEXIS 273: Death sentence reversed because 1) the postconviction trial court erred when it denied a claim that jury instructions constituted a constructive amendment or fatal variance to the indictment; 2) trial counsel was conflicted and ineffective during the guilt phase; 3) the cumulative effect of procedural and substantive errors deprived defendant of a fundamentally fair trial; and 4) defendant was denied effective assistance of appellate counsel.
Ey v. State of Florida (2/28/2008, No. SC03-2161) 2008 Fla. LEXIS 270: When a defendant has committed two separate crimes and informs his attorney about both of them, the attorney’s erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel.
Williams v. State of Florida (1/10/2008, No. SC05-226, SC05-1579) 2008 Fla. LEXIS 5: IAC for failure to present certain mitigating evidence at the penalty phase of a death penalty trial.
State of Florida v. Lopez (1/10/2008, No. SC05-88) 2008 Fla. LEXIS 1: Prior discovery deposition of a declarant by defendant’s counsel did not qualify as a “prior opportunity for cross-examination” under Crawford, and the admission of the testimonial statement at trial violated defendant’s confrontation rights.
Green v. State of Florida (1/31/2008, No. SC06-211) 2008 Fla. LEXIS 135: Death sentence vacated based on substantial mental health mitigation presented, including evidence that for years defendant has suffered from schizophrenic disorders, as death sentence was disproportionate.
Illinois Supreme Court
People v. Carpenter (4/17/2008, IL No. 103616, 103856, 103857cons.) 228 Ill.2d 250 [888 NE2d 105]: In consolidated cases arising from instances where defendants had vehicle air bag compartments which contained something other than air bags and one was subsequently convicted of the felony offense of having a false or secret compartment in the motor vehicle, the statute is held unconstitutional as violative of substantive due process guarantees where it fails to survive the rational basis test that a statute must employ reasonable means to reach a desired objective.
New York Court of Appeals
People v. Giles (12/2/2008, No. 181) 11 NY3d 495: Evidence of defendant’s commission of prior uncharged burglaries was prejudicial and required a limiting instruction.
People v. Jean-Baptiste (11/25/2008, No. 174) 2008 N.Y. LEXIS 3399: Evidence introduced at trial was not legally sufficient to establish defendant’s guilt of depraved indifference murder.
People v. Shemesh (aff’d 9/16/2008, No. 201 SSM 32) 850 NYS2d 59: Grand Jury; Defendant’s Right to Appear: Prosecutor failed to accord the defendant reasonable time to exercise right to appear as a witness before the grand jury.
People v. Hunter (6/12/2008, NY No. 92) 2008 N.Y. LEXIS 1491: Brady violation where (1) the government learned, but did not disclose to defendant, that the same woman had recently accused another man of raping her in that man’s home; and (2) post-trial events do not serve to nullify a defendant’s rights under Brady at the time of trial and before it.
People v. Montilla (6/25/2008, NY No. 116) 2008 N.Y. LEXIS 1817: When the Penal Law does not define a particular term, it is presumed that the term should be given its precise and well settled legal meaning in the state’s jurisprudence, and thus borrowing the Criminal Procedure Law’s definition of a “conviction” to give meaning to the word “convicted” in Penal Law is justified.
People v. Cabrera (5/01/2008, NY No. 61) 10 NY3d 370 [887 NE2d 1132]: Conviction for criminally negligent homicide and third-degree assault reversed and dismissed where speeding behavior was negligent and unquestionably “blameworthy,” but the evidence adduced at trial and circumstances surrounding the accident failed to establish the “morally blameworthy” element required to infer defendant’s criminal negligence.
Texas Criminal Court of Appeals
Walter v. Texas (10/1/2008, No. PD-1929-06) 2008 Tex. Crim. App. LEXIS 1182: Hearsay: Declarations against penal interest by co-defendant not admissible unless the co-defendant’s statements are sufficiently against his own interest.
Littrell v. Texas (10/15/2008, No. PD-1555-07) 2008 Tex. Crim. App. LEXIS 1306: Multiplicity; Lesser Included Offenses: Conviction for both aggravated robbery and felony murder based on that robbery violated double jeopardy.
Pecina v. Texas (10/29/2008, No. PD-1159-07) [cite not available yet]: Miranda reversal.
Reed v. Texas (10/29/2008, No. PD-366-07) 2007 Tex. Crim. App. LEXIS 987: Shooting at Inhabited Dwelling: Offense not committed by discharging a firearm inside a dwelling.
Tita v. State of Texas (9/10/2008, No. PD-1574-07) 2008 Tex. Crim. App. LEXIS 858: Statute of Limitations; Prosecutor’s Duty to Plead: Texas statute required that the indictment to indicate on its face that a prosecution thereunder was not barred by the applicable statute of limitations and, if tolling were required to bring the alleged offense within the statute of limitations, the state was required to plead applicable tolling facts in the indictment.
Alberty v. State of Texas (4/9/2008, TX No. PD-0822-07, PD-0823-07) 250 SW3d 115: Jury instructions in aggravated sexual assault of a child case were erroneous because they did not limit the “on or about” language in regard to the statute of limitations to any date prior to the date of the filing of the indictment, and on or after defendant’s seventeenth birthday, thus permitting the jury to convict him on the basis of testimony about numerous offenses alleged to have been committed while he was a juvenile.
Ex parte Thompson (3/5/2008, Tex. Crim. App. No. AP-75,720) 2008 Tex. Crim. App. LEXIS 328: Multiplicity principles violated where witness was charged with 13 contempt violations for refusal to answer questions in one trial.
Holmes v. State of Texas (3/5/2008, Tex. Crim. App. No. PD-1050-07) 248 SW3d 194: A defendant who affirmatively states, “No objection,” when evidence is offered, waives his right to complain on appeal that the evidence was, as a matter of law, illegally obtained. However, that same defendant may still request and receive an appropriate jury instruction if the evidence raises a contested factual issue that is material to the lawfulness of obtaining the evidence.
Farrakhan v. State of Texas (3/12/2008, Tex. Crim. App. No. PD-1984-06) 247 SW3d 720: Misdemeanor offense of fleeing is not a lesser-included offense of the felony offense of evading detention with a motor vehicle in this case.
Wisconsin Court of Appeals
State v. Edmunds (Wis. Ct. App. 1/31/2008, No. 2007AP933) 2008 Wisc. App. LEXIS 91: Conviction thrown out and new trial ordered because latest research into shaken baby syndrome might prove defendant didn’t kill a baby in her care. In overturning the conviction the court cited the fierce debate that has developed over whether babies can die through shaking alone, whether they can stay alive for a time after receiving traumatic head injuries and whether symptoms similar to those associated with shaking can be caused by other factors.